STATE OF MICHIGAN IN THE 30th CIRCUIT COURT FOR THE COUNTY OF INGHAM _______________________________________ CITY OF EAST LANSING, Plaintiff Case #19-555-CZ Hon. Judge James Jamo v. MICHAEL ZYDECK and KIMBERLEY ZYDECK, Defendants _________________________________________ Mark Grebner (P38984) Attorney for Defendants 920 N Washington Avenue Lansing MI 48906 (517) 351-6682 [email protected] __________________________________________ Defendants’ Answer to Complaint, Statement of Affirmative Defenses, and Counterclaim NOW COME Defendants Michael Zydeck and Kimberley Zydeck, by and through their attorney Mark Grebner to answer the City’s Complaint, give notice of Affirmative Defenses, and to raise Counter-Claims. Answers 1. Plaintiff, City of East Lansing (hereinafter “City”), is a Michigan municipal corporation located in the Counties of Ingham and Clinton, State of Michigan, with its principal offices located at 410 Abbot 1 Road, East Lansing, Michigan 48823, and a home rule city formed and incorporated under the Home Rule Cities Act, MCL 117.1, et seq. Admitted. 2. Defendants Michael Zydeck and Kimberley Zydeck are the property owners of a single-family dwelling located at 444 Division Street, in the City of East Lansing, Ingham County, Michigan (hereinafter “Property”), and legally described as follows: N 15 FT OF LOT 35 AND LOT 36 ENTIRE CHASE SUB OF PART OF LOT 78 OF COLLEGE GROVE PIN: 33-20-02-18-132-001 Admitted. 3. The property is located within the City’s medium density single-family residential district, R- 2. Admitted. 4. The property is situated on a corner-lot at Division and Elizabeth Streets. 2 Admitted. 5. David Haywood is the City of East Lansing’s Planning and Zoning Administrator (hereinafter “Administrator”). Admitted. 6. This is a complaint for declaratory and injunctive relief which is not based on contract or tort and this court has jurisdiction over the same pursuant to MCL 600.605 and MCL 600.2940. Admitted. 7. On or about June 29, 2017, Defendant Michael Zydeck filed a Paving Permit Application with the City of East Lansing to “replace existing driveway.” With the application, Defendant Zydeck included a survey and plans for the driveway repaving. Admitted. 8. The Paving Permit Application was approved on June 30, 2017. Admitted. Defendants further state that the paving permit was approved and signed by Administrator 3 Haywood. 9. On or about July 28, 2017, a neighbor brought to the City’s attention that the forms laid for the paving appeared to exceed the rear yard coverage allowed by the City’s Zoning Code and that the original approval was made in error. Neither admitted nor denied, as to what was brought to the City’s attention or by whom, being outside Defendants’ knowledge. Admitted, that errors were made by the City during their review of the paving permit application. Denied, that the approval of the paving permit was in error. 10. As a result of this notification, on July 28, 2019, the City contacted the owner and contractor and advised them to stop work. Admitted, that the City ordered the Defendants and their contractor to stop work. Neither Admitted nor Denied, that this stop work order was a result of a communication received, as being outside the Defendants’ knowledge. 11. Representatives of the City advised the owner that the only way to proceed with what was originally approved would be to obtain a variance from the zoning code. 4 Admitted. 12. Defendant filed an application for a variance on or about August 6, 2017, with the City’s Zoning Board of Appeals. Admitted. 13. On or about September 6, 2017, the East Lansing Zoning Appeals Board partially granted Defendants a variance from Section 50-816(3) rear yard coverage and denied Defendants a variance from Section 50-816(4) rear yard parking setback. Admitted. 14. On or about September 7, 2017, Defendant Michael Zydeck was notified that the variances had been partially granted and denied by way of a written approval notice from Administrator. Admitted, that a communication was received from the Administrator. Denied, that such communication conveyed the ZBA’s decision. 5 15. The written approval notice provided a detailed description of the variance granted. Specifically that the partial variance allowed Defendants to reconstruct the driveway according to the preexisting parking configuration shown on the survey dated June 6, 2017, with the allowance of an additional four feet by 20 feet to the west side of the parking area up to a maximum total rear yard coverage of 33.5 percent. The variance was granted with the condition that 3.5 percent of the paved areas within the rear yard be constructed of pervious materials. Denied, that a detailed description was provided of the variance granted. Denied, that the communication included a correct description of the scope and terms of the variance. Admitted, that the communication included the alleged statements. 16. Despite having specific approval for only paving 33.5%, Defendant placed forms for paving approximately 41% coverage of the rear yard. Denied, as untrue. Defendants further state that the forms, as placed, caused approximately 29.1% of the rear yard to be paved for use as a parking surface, which was consistent with the City’s Zoning Code, without reference to any variance. < 17. On or about September 14, 2017, Defendants did obtain approval by a City building L d inspector for compliance with the building code as to the concrete forms, but that did not constitute 6 approval of the sized of paving. Admitted, that the City’s inspector approved the forms as placed. Denied, that the inspector’s approval “did not constitute approval of the size[ ] of paving”. 18. Defendants poured concrete totaling 41 percent coverage in the rear yard. Denied, as untrue. Defendants further state that the area paved for parking use constituted approximately 29.1% of the rear yard as defined by East Lansing ordinances. 19. When the Zoning Department became aware of the paving, City representatives offered to assist with the expense of bringing the driveway into compliance, including saw cutting concrete and restoration. Admitted, that such an offer was eventually made. Denied, that such offer occurred “When the Zoning Department became aware of the paving”. Defendants state further that the City made an offer to pay $1500 to Defendant on November 6, 2017, which offer was rescinded on March 29, 2018. Defendants state further that they were again offered $1500 on August 22, 2018. 7 20. This offer was rejected by Defendants who took no action of their own to bring the property into compliance with the ordinance or the variance granted. Admitted, the City’s offer was met by a counter-offer, which they City rejected. Denied, that Defendants failed to take any action to bring the property into compliance with the terms of the variance. Defendants state further that they modified the completed driveway by installing the required section of pervious pavement, shortly before May 11, 2018. 21. A review was held of the Zoning Board of Appeals proceeding and on March 7, 2018, the Board confirmed that the minutes accurately reflected the proceedings of the meeting and no corrections to the variance were needed. Neither admitted nor denied that such review took place, as lying outside the knowledge of Defendants. Denied, that the minutes accurately reflected the ZBA’s action on September 6, 2017. 22. On or about March 23, 2018, Defendant Michael Zydeck was provided a written notice of violation by Administrator. He was advised that the driveway in its current configuration is a violation of Section 50-816(3) and that maintaining the configuration would result in citations or legal action. 8 Denied, that any communication dated March 23, 2018 is in the hands of Defendants. Admitted, that a letter dated March 29, 2018 was received in which Administrator Haywood rescinded his previous offer to pay $1500 to Defendants, threatened Defendant Michael Zydeck with criminal prosecution, and declared that the minutes of the September 6, 2017 ZBA meeting had been accurate all along. 23. On May 30, 2018, counsel for Defendants was provided written correspondence from Administrator extending the due date for compliance from June 1, 2018, to June 30, 2018, noting again that the configuration cannot exceed 33.5 percent of coverage with 3.5 percent of pervious material. Notice was given that if the driveway was not brought into compliance by June 30, 2018, enforcement action would be taken. Admitted, that such correspondence was received. Defendants further state that the only “enforcement action” mentioned in the letter was the threat of criminal prosecution. 24. An inspection was held on July 2, 2018, at which time it was determined that the paving covered 41 percent of the rear yard. Defendant Michael Zydeck was notified of the continued violation by written correspondence from Administrator on July 18, 2018. I D < \ J c o 9 Neither Admitted nor Denied, that an inspection took place, as lying outside Defendants’ knowledge. Deny that paving covered 41% of the rear yard, or that paved parking surfaces covered 41% of the rear yard. Admit, that Defendants received correspondence from Administrator Haywood. Deny, that any violation existed. COUNT 1 - VIOLATION OF EAST LANSING’S ZONING CODE 25. Plaintiff hereby incorporates the allegations in paragraphs 1 through 24 as if fully set forth herein. Section 50-816(3) states: Yard paving restriction. In all residential districts, the amount of paving in a front yard and in a side yard along a street on a comer lot shall not exceed an amount equal to 25 percent of the front yard area as defined in section 50-9 of this chapter or up to 35 percent where 10 percent of the paving is pervious paving material.